Mount Barker Properties Ltd v D C of Mount Barker No. Scciv-01-587
[2001] SASC 108
•3 April 2001
MOUNT BARKER PROPERTIES LTD v DISTRICT COUNCIL OF
MOUNT BARKER[2001] SASC 108
Civil (Ex Tempore)
LANDER J. This is an application for an injunction to restrain the defendant, the District Council of Mount Barker, from proceeding to public consultation with the draft Mount Barker and Little Hampton Townships Plan Amendment Report and to restrain the Council from proceeding with a public hearing convened by the Council at Mount Barker tonight.
The plaintiff is the proprietor of certain land at Mount Barker on which is an established Bi-Lo supermarket and shops and associated car parking. The Bi-Lo shopping centre is situated in the town of Mount Barker and has frontages to five streets within Mount Barker.
Mount Barker, like every other area of this State, is subject to a Development Plan. In 1998, it decided to seek to amend that Development Plan and in September 1998, a Statement of Intent was settled upon with the relevant Minister pursuant to s.25 of the Development Act 1993 (SA).
On 16 November 2000, the defendant wrote to the plaintiff advising that it had released the Mount Barker and Little Hampton Township Centre Plan Amendment Report, (otherwise called a draft PAR) for public exhibition on that day. On the same day, an advertisement was placed in “The Courier”, a newspaper circulating in Mount Barker, advertising the fact of the draft PAR and seeking submissions in relation to it. A further advertisement was placed in “The Advertiser” newspaper on 25 January 2001, extending the time within which the public might make written submissions to 26 March 2001.
On 26 March 2001, the plaintiff delivered its written submissions on the draft PAR to the defendant. Those submissions comprised a letter from Mellor Olsson dated 26 March 2001, a letter from Master Plan of the same date, and a letter from Coles Myer dated 20 March 2001.
The letter from Master Plan and the letter from Coles Myer were highly critical of the draft PAR in a number of respects, none of which, for the purpose of this application, need to be addressed.
The letter from Mellor Olsson was written on behalf of the plaintiff and another party (who is not a party to this action) and advised the Council that it should not proceed with the draft PAR and gave a number of grounds why. Importantly, it referred to two reasons for the council not proceeding with the draft PAR.
The first related to car parking. Messrs Mellor Olsson pointed out to the council that the draft PAR was apparently incomplete in relation to its inquiry into car parking. The second matter was in relation to a Local Centre (Hawthorn Road) Zone. The letter pointed out that such a Zone was not contemplated in the Statement of Intent and that had not been included in the Statement of Investigations under s 25(3) of the Development Act 1992 (SA).
Messrs Mellor Olsson, on behalf of the plaintiff and its other client, claimed that a number of irregularities in the procedures had apparently been adopted by the defendant in its consideration of this PAR. The letter of 26 March 2001 concluded by advising the defendant that both the plaintiff and Messrs Mellor Olsson’s other client would wish to address the Council at the public hearing tonight.
This application was served, I think, on the defendant not much more than an hour or so ago and has to be considered in circumstances where the meeting is to take place at 7 pm tonight.
Section 25 of the Development Act requires Council, when considering a draft PAR, to contemplate taking the matter to public consultation. That is the step which has been taken on this occasion. It is expected that a number of persons will address the Council and make submissions in relation to the draft PAR. I suppose it can be inferred that some of those addressing the meeting will speak in favour of the draft PAR, whilst others will speak against it.
The public meeting tonight will not, however, be the end of the matter. The public meeting may be adjourned for further consideration. The meeting may give rise to further amendments to the PAR and further consideration by the Council of the draft PAR.
I will assume, because the short notice requires me to do so, that the criticisms that Mr Hayes QC has made of the draft PAR are valid. They are the same criticisms which were pointed out by Messrs Mellor Olsson in their letter of 26 March. I will assume there is a serious question to be tried.
The next question which must be addressed is where the balance of convenience lies.
If the public meeting goes ahead, the plaintiff will still be entitled to the relief it seeks in this action if, in fact, it is right in its criticism of the draft PAR and its criticism of the irregularities which it claims the Council has followed. In those circumstances, the public meeting tonight will not in any way prevent the plaintiff from continuing these proceedings and obtaining, in due course, the relief it seeks which might include an order that the Council abandon the draft PAR. On the other hand, if the Council is prevented from holding the meeting tonight a number of persons, who it is anticipated will be addressing the meeting, will not be able to be heard. The process of a public consultation will be seriously interrupted and it will be extended by reason of the abandonment of the meeting.
It seems to me that the balance of convenience is against the plaintiff and, in those circumstances, it would be appropriate to refuse the application.
I should point out, as well, although this is not decisive in this matter, that this application was made very late in circumstances where the plaintiff has been aware of the draft PAR for more than four months. The application was made three to four hours before the meeting, in circumstances where the plaintiff had been aware of the contents of the report for some time and where only a week ago it advised the Council it would attend and make representations in relation to the matters of which it now complains.
The application for an interim injunction is refused.
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